Texas has had its fair share of forensic science grief these last few months.  Mostly notably, a big argument has erupted over the execution of an apparently innocent man (many articles on the subject, including this one, about Cameron Todd Willingham who was wrongly convicted on the basis of forensic evidence later shown to be incorrect).

The State is now in hot water over its continued and questionable use of dogs to identify perpetrators using a dog scent line up.  Basically, a swab is rubbed over an item of interest, such as a rope used to strangle a murder victim.  The swab is placed in a tin.  Several other tins are lined up, each with a swab from a different person (including one from the the suspect).  Dog is allowed to sniff crime scene swab then sniffs the swabs taken from people.  Dog “matches” crime scene scent with suspect’s scent – suspect arrested and charged with heinous crime.

The Innocence Project has now got involved because, I believe quite rightly, this is not a scientific method that can be shown to be reliable or reproducible. To my knowledge, there is not a body of well-researched, peer-reviewed scientific literature backing up this method of ID.

Let’s hope this method doesn’t take off over here – at least not until the scientific sector is convinced it has been exhaustively examined, considered, tested and that the courts accept it BEFORE someone is charged with a serious offence. In my opinion, a case should not stand on one evidence type alone – something a bit more than a dog sniff and a police report should be required.

I’m not going to get into the whole debate about the NZ Legal Aid Reform report largely because, so far, it hasn’t mentioned Expert Witnesses.  However, a recent English review of their Legal Aid system seems to show very different criticisms than have recently been levelled at the NZ system and its practitioners (NZ report is at Transforming the Legal Aid System).  The key part of the NZ report that criticises how the system is apparently working says:

“The ties that once held lawyers together as a profession seem to be breaking down, and some lawyers appear to be operating as a business without the professional standards and support that used to exist. The legal aid system appears to have had a role in this, through the pay rates and administrative burdens that have led to many law firms exiting the system, and being replaced by barristers sole, “car boot lawyers” in particular.
There are many conscientious and experienced barristers and solicitors working in the legal aid system, who are a credit to their profession. There is also a small but significant proportion of lawyers providing very poor services. Behaviour I have heard about includes callous and arrogant indifference to clients’ needs, and an absolute disregard and disrespect for the court system, its processes, and its participants. Some lawyers appear to be acting corruptly, and should be disbarred.
The poor practices identified in the review include:

• lawyers making sentencing submissions without having read the pre-sentence report
• practising lawyers being unaware of legal principles and being unaware of their ignorance
• lawyers repeatedly failing to turn up to court
• “car boot lawyers” using a District Court law library phone number as their office number, and appropriating interview rooms in the court as their offices
• lawyers gaming the system by delaying a plea or changing pleas part-way through the process in order to maximise legal aid payments (I have been told by people who work in the court that up to 80 per cent of lawyers practising in the Manukau District Court could be gaming the system)
• lawyers who demand or accept “top up” payments from clients who do not understand that the Legal Services Agency pays all of the bill
• widespread abuse of the preferred lawyer policy by duty solicitors, including by taking backhanders for recommending particular lawyers to legal aid applicants.

These problems are more serious and more entrenched in the criminal bar than in other law types.”

The UK report: National Audit Office report shows lawyers are ready to walk as failing legal aid system crumbles says that: “16 per cent of solicitors firms providing legal aid criminal defence services make 0 per cent profit and 14 per cent of firms make only 1-5 per cent profit. The figures represent the position before the partners receive a single penny – 0 per cent profit means that the partners did not earn any income whatsoever for their work. In effect, they are being cross-subsidised by more profitable work that the firm does. Most worryingly, says the [Law] Society, 28% of firms said they were unlikely to be conducting legal aid in five years time because of unprofitability, the prospect of tendering or retirement.”

Different criticisms and problems, very similar legal systems.  How is it all going to be fixed?

Just to throw some petrol on the fire of debate about how long to keep DNA samples on the DNA database if someone hasn’t been charged with a crime, here is an article from the BBC that shows cold case reviews and random hits on the DNA database do occur: Rape conviction ‘backs DNA case’. The Defendant, and now convicted rapist, was arrested in 2001 following an assault for which he was never charged. His DNA profile was uploaded to the UK National DNA Database in 2007 (because of advances in technology) where it scored a hit against an unsolved, outstanding rape case from 1990.

Some will say this is an excellent example of why DNA samples should be retained – what price does society put on solving a rape? On the other hand, some will say that the small number of successful random hits like this are far outweighed by the number of people who consider their civil liberties and human rights are violated by having their DNA retained on a database when they haven’t been proved to have do anything criminal.

This post follows on from a recent post by Grant Jacobs (Scientists on TV: referees of evidence or expert’s opinion?) and associated comments.

In my opinion, if an expert is presenting information to a court, the court setting doesn’t matter, the manner in which the scientific findings are presented should be the same, regardless of the forensic setting – reproducibility, reliability, impartiality, duty to the court not to those instructing, not having an opinion on the Ultimate Issue (guilt, innocence or other final outcome to be decided by the Trier of Fact and no-one else). The things that distinguish how findings are presented are the rules that relate to individual courts. As a guide, the High Court Code of Conduct for Expert Witnesses is the minimum I would expect of any consultant I used, regardless of the court – these Rules relate to the NZ High Court. (I have previously written about the differences between scientific findings and evidence).

The UK has the most advanced set of procedures that I have encountered to-date – and, having worked with them for some years, I believe they are excellent. Civil procedures are covered by Criminal Procedure Rules (CPR) Part 35 and Part 35 Practice Direction. Criminal procedures are covered by the Criminal Procedure Rules (CrPR) Part 33. These detail how to write reports, how the court should treat Experts, how the court system should work and what the Expert can expect, to name but a few. It seems very regimented but it is designed to create and maintain consistency in standards.

Once the scientist/expert is familiar with the CPR Part 35 and CrPR Part 33, it makes life much, much easier. It allows the courts to believe the findings more easily because before the findings can even make it into court they’ve been through a rigorous checking procedure, as has the Expert.  Having experience giving evidence helps as well of course – the more experience, the better (although that doesn’t meant it’ll get easier with time – it doesn’t).

So, in conclusion, if a scientist can learn to use these tools of procedure for casework and preparation of reports, maintaining control of an interview should seem much easier!  Although, lest we forget, there are no rules for interviews….

Recent research in mice has shown that an interaction between cocaine and the active ingredient of CS spray, capsaicin, may result in death.  CS spray (more commonly known as pepper spray) is used by police forces the world over, including New Zealand, as a non-lethal weapon to assist with arrest and incapacitate the person being sprayed.
I’ve encountered the use of CS spray in several cases, all of them alcohol-related but none of them involving fatalities.  Apparently, the presence of capsaicin makes smaller amounts of cocaine more lethal, reports New Scientist (Cocaine and pepper spray – a lethal mix?). It must be remembered however that the research involved mice who were injected with cocaine and capsaicin, whereas in humans the capsaicin is sprayed into the face at a variable time after the cocaine had been taken.

As is often the case with studies involving animals, the results do not necessarily translate directly to humans. However, should there be found to be any definitive correlation between human deaths and the use of CS spray after someone has taken cocaine, the long-term future of the use of CS spray by Police does not look rosy. The New Scientist article also indicates that review was undertaken of 26 deaths that occurred between 1993 and 1995 of people who died shortly after being subdued with pepper spray. 19 had evidence of psychostimulant drugs in the blood and nine had cocaine. Toxicologists are, of course, interested in the results, which may be the result of interactions between the drug and capsaicin in the brain but, as with all good research, further information is needed particularly if there is a push to have the spray banned as a non-lethal, law enforcement weapon. I also assume that someone in the States would want to sue someone else if research proves a link between deaths, cocaine use and CS spray used by a Police officer.

Despite suggestions that, just in case there is an adverse interaction, CS spray not be used on people who have taken cocaine, it begs the question that what Police officer is going to stop and ask a struggling, defensive, aggressive member of the public whether or not they’ve taken cocaine? Practicality says the opportunity for such questions doesn’t always exist – and even if it did, anyone with any sense is not going to admit to a member of the law enforcement agency that they’ve taken an illegal drug, even if the question is supposed to be for their own good.

Let’s wait and see the outcome because someone somewhere has got funding to research this. If the results are against the continued use of CS spray, I guess each country will then need to undertake its own review before making a decision.